DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 1-10 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
Independent claim 1 and its dependent claims 2-10 requires a flash evaporation material wherein the raw material of the flash evaporation material comprises polyethylene and the flash evaporation material has the claimed properties of compression specific power P of the flash evaporation material is greater than 0.07 gf·cm/cm²; the compression specific power is tested by a KES style tester, and the compression specific power is tested by FB3; a haze attenuation rate W of the flash evaporation material is 0.3%-1.5%; (W0-W5)/W0*100%; an attenuation rate S of a heat shielding rate of the flash evaporation material is 7%-15%; S(S=(S0-S5)/S0*10%. The instant description includes 9 examples of a polyethylene material in combination with porous carbon loaded with zinc oxide and/or polyvinylpyrrolidone surfactant. However, no examples are provided of a flash evaporation material comprising polyethylene without the porous carbon loaded with zinc oxide in combination with a surfactant, specifically PVP, that also satisfies a compression specific power P of the flash evaporation material being greater than 0.07 gf·cm/cm²; the compression specific power is tested by a KES style tester, and the compression specific power is tested by FB3; a haze attenuation rate W of the flash evaporation material being 0.3%-1.5%; (W0-W5)/W0*100%; an attenuation rate S of a heat shielding rate of the flash evaporation material is 7%-15%; S(S=(S0-S5)/S0*10%. Para 0068 of the originally filed disclosure states “the present disclosure has found through experiments that the haze attenuation rate and the heat shielding rate attenuation rate of the flash evaporation material are at least closely related to factors such as the content of the porous carbon material loaded with zinc oxide in the spinning raw material and the content of the surfactant in the spinning solvent, and provides a novel preparation process for the flash evaporation material, which enables the flash evaporation material to have a lower haze attenuation rate and a lower attenuation rate of the heat shielding rate, thus overcoming the problem of significant decline in the heat shielding performance and the haze performance of the flash evaporation material after a period of use in the prior art.” The claimed properties appear attributed to the presence of the porous carbon material loaded with zinc oxide and the surfactant. Para 0275 states “[r]esult analysis: comparing the above data, it can be seen that increasing the amount of the porous carbon material loaded with zinc oxide in the spinning raw material will reduce the haze attenuation rate and the attenuation rate of the heat shielding rate. However, after increasing to a certain amount, the decrease rate will significantly slow down. After increasing the amount of the surfactant in the spinning solvent, the haze attenuation rate and the attenuation rate of the heat shielding rate will also decrease. However, after increasing to a certain amount, the decrease rate will also significantly slow down.” The specification provides no guidance on achieving the claimed properties without the presence of both a porous carbon loaded with zinc oxide and a surfactant. The limited examples described in the description do not provide a representative number of species sufficient to show that Applicant was in possession of the claimed genus (see MPEP 2163-II-A-1-ii).
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-13 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites the limitation “[a] flash evaporation material with a low haze attenuation rate, wherein a raw material of the flash evaporation material comprises polyethylene, and a grammage of a flash spun non-woven fabric is greater than 35 g/m², a compression specific power P of the flash evaporation material is greater than 0.07 gf·cm/cm²; the compression specific power is tested by a KES style tester, and the compression specific power is tested by FB3; a haze attenuation rate W of the flash evaporation material is 0.3%-1.5%; (W0-W5)/W0*100%; an attenuation rate S of a heat shielding rate of the flash evaporation material is 7%-15%; S(S=(S0-S5)/S0*10%; tests for a heat shielding rate, a haze and a transverse tensile strength: (1) placing a sample at 25°C and a relative humidity of 65% for 24 hours; then measuring and recording a shading index thereof as an initial heat shielding rate SO, measuring and
recording a haze thereof as an initial haze W0, and measuring and recording a transverse tensile
strength thereof as a transverse tensile strength CTS0; (2) then exposing the sample to a dry and hot atmosphere of 90°C for 6 hours, and then cooling at 25°C and a relative humidity of 65% for 24 hours; (3) repeating the operation of step (2), and after treatment for 4 times, measuring and
recording a shading index thereof as a final heat shielding rate S5, measuring and recording a
haze thereof as a final haze W5, and measuring and recording a transverse tensile strength
thereof as a final transverse tensile strength CTS5; the haze is tested according to the national standard GB/T2410-2008; and the heat shielding rate is measured according to the national standard GB/T41560-2022.” It is unclear whether the flash evaporation material is a flash spun non-woven fabric or intended to be formed into a non-woven fabric. Based on the originally filed disclosure, it appears that the testing is complete on the flash spun non-woven material. If so, it is unclear if the flash evaporation material has the claimed grammage of being greater than 35 g/m2. Additionally, “low haze attenuation rate” is a relative term. The term “low haze attenuation rate” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. The claim does recite the haze attenuation rate being 0.3%-1.5% and will be interpreted as being a “low haze attenuation rate.” Furthermore, a transverse tensile strength is mention in the claimed but the properties or value has not been specified. It is unclear if the claim intends to limit the transverse tensile strength.
Similar to claim 1, claims 2-3 recite the limitations “wherein the grammage of the flash spun non-woven fabric is less than 75 g/m²” (claim 2) and “wherein the compression specific power P of the flash spun non-woven fabric is greater than 0.15 gf cm/cm²” (claim 3). It is unclear if the claim intends the flash evaporation material to be a flash spun non-woven fabric with the claimed features or is an intended use of the flash evaporation material, needing to be capable of forming a flash spun non-woven fabric with the claimed features.
Claim 11 recites the limitation “wherein a spinning raw material includes polyethylene and a porous carbon material loaded with zinc oxide, and a spinning solvent includes a surfactant and a solvent.” It is unclear of the spinning raw material is the same or different from the raw material of the flash evaporation material of claim 1 and if the polyethylene is the same or different from the polyethylene of claim 1.
The remaining claims are rejected based on their dependency on rejected claims.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 6,046,118 to Jones.
Regarding claims 1-13, Jones teaches a flash-spun polyethylene sheet having a basis weight of less than 110 g/m2 and comprising polyethylene mixed with a UV stabilizer that stabilizes the sheet against UV degradation and acid neutralizer that reduces degradation during extended weathering (Jones, abstract, col. 2 lines 18-60, col. 4 lines 13-24), reading on a flash evaporation material and the raw material of the flash evaporation material comprising polyethylene and having a grammage of flash spun non-woven fabric of less than 110 g/m2, as best understood by Examiner. Jones teaches a specific embodiment having a basis weight of 59 g/m2 (Id., col. 7 lines 30-col. 8 line 15). While the reference does not specifically teach the claimed range of greater than 35 g/m2 (claim 1), less than 75 g/m2 (claim 2), the disclosed range of the prior art combination overlaps with the instant claimed range. It should be noted that in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990). The existence of overlapping or encompassing ranges shifts the burden to Applicant to show that his invention would not have been obvious. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). Furthermore, it would have been obvious to one of ordinary skill in the art before the effective filing date to adjust, vary, and optimize the grammage, such as within the claimed range, motivated by the desire to successfully practice the invention of the prior art based on the totality of the teachings of the prior art.
Regarding claims 1 and 3-10 and the claimed compression specific power P, haze attenuation rate, attenuation rate of heat shielding, and attenuation rate of a transverse tensile strength, in general, a limitation is inherent if it is the “natural result flowing from” the explicit disclosure of the prior art. Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed. Cir. 2003). Therefore, although the prior art does not disclose these feature, the claimed properties are deemed to be inherent to the structure in the prior art since the prior art reference teaches an invention with a substantially similar structure and chemical composition as the claimed invention. Jones teaches a flash spun nonwoven comprising polyethylene and having low reduced degradation due to UV and weather. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise. Alternatively, it would have been obvious to one of ordinary skill in the art before the effective filing date to form the flash-spun polyethylene sheet of Jones, wherein the UV stabilizer and acid neutralizer are optimized based on the desired performance, such as to achieve the desired stability and therefore attenuation rates as claimed, motivated by the desire to avoid degradation due to UV and weathering.
Examiner would also like to note that the limitation “flash evaporation” is interpreted as a product-by-process limitation. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985).
Regarding claims 11-13, the limitations “wherein a spinning raw material includes polyethylene and a porous carbon material loaded with zinc oxide, and a spinning solvent includes a surfactant and a solvent” (claim 11), “wherein a mass fraction of the porous carbon material loaded with zinc oxide in the spinning raw material is 3%-6%; and the surfactant in the spinning solvent is 500 ppm-2000 ppm” (claim 12), and “wherein the porous carbon material loaded with zinc oxide is prepared by the following steps: (1) preparation of a solution of silica nanoparticles surface-coated with polyvinyl alcohol: (2) preparation of a zinc-containing porous carbon precursor dispersion: further adding the solution of silica nanoparticles surface-coated with polyvinyl alcohol prepared in step (1) to a zinc nitrate aqueous solution to continue a first-order reaction, thus making zinc and polyvinyl alcohol perform a chelation reaction and being loaded on the surface of the silica nanoparticles, then using an alkali to slowly adjust a pH value of a mixed solution to 11-12, and continuing a second-order reaction under alkali conditions to obtain the zinc- containing porous carbon precursor dispersion; (3) preparation of the porous carbon material loaded with zinc oxide: finally, separating the zinc-containing porous carbon precursor dispersion in step (2) by centrifugation, and taking a sediment from a lower layer to obtain a zinc-containing porous carbon precursor; performing aerobic calcination on the zinc-containing porous carbon precursor in the lower layer aerobically at 180°C-200°C for 15-30 minutes, and then rapidly heating up to 440°C-450°C within 1-5 minutes, performing anaerobic calcination for 45-60 minutes, and obtaining the porous carbon material loaded with zinc oxide after natural cooling” interpreted as a product-by-process limitations. Absent a showing to the contrary, it is Examiner's position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The limitation only discusses a spinning raw material and provides no additional details, including how the flash evaporation material is formed. There are no limitations or process steps that described or limit the finally formed, claimed product, including whether the porous carbon material loaded with zinc oxide and the surfactant are even present in the finally formed product. The process as claimed encompasses the porous carbon material loaded with zinc oxide and the surfactant being removed as part of the processing. If still present, the amount within the formed product is not defined as the polyethylene is not specified merely the content in the spinning raw material, which could contain solvents driven off, i.e. evaporated, as part of processing. The burden has been shifted to Applicant to show unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Claims 1-13 are rejected under 35 U.S.C. 103 as being unpatentable over USPN 6,046,118 to Jones, as applied to claims 1-13 above, in view of JP 6221244 to Tsurumaru and USPN 5,192,468 to Coates.
NOTE: The English Machine translation is being used for prior art application.
Regarding claims 1-13, in the event that the claimed properties are not inherent present and due to the presence of zinc oxide and a surfactant, Tsurumaru teaches a hear-resistant polyolefin composition having excellent thermal aging resistance, mechanical characteristics, and processibility comprising polyethylene blended with N,N’-di-naphthyl-p-phenylenediamine, benzimidazole anti-oxidant, and zinc oxide (Tsurumaru, abstract). Tsurumaru teaches is the zinc oxide is too low, sufficient heat aging resistance properties cannot be obtained but if too high, the mechanical properties and electrical properties under normal condition will deteriorate (Id., p. 2). Tsurumaru also teaches the composition being extrusion molded (Id., p. 2). Additionally, Coates teaches flash-spinning of polymer, such as polyethylene (Coates, abstract, col. 2 lines 38-58). Coates teaches the spinning mixture containing a surfactant that assists in emulsifying the polymer or in otherwise aiding in forming a mixture (Id., col. 3 lines 55-68). Coates teaches the spinning mixture containing convention flash-spinning additive including ultraviolet-light stabilizer, antioxidants, fillers, dyes, surfactants and the like (Id., col. 4 lines 9-14).
It would have been obvious to one of ordinary skill in the art before the effective filing date to form the flash-spun polyethylene sheet of Jones, wherein sheet further comprises zinc oxide as taught by Tsurumaru and a surfactant as taught by Coates, motivated by the desire of using conventionally known additives predictably suitable for use with polyethylene and flash spinning and by the desire to ensure sufficient heat aging resistance properties as well as assist in emulsifying the polymer and aiding in mixture formation. It should be noted that zinc oxide is a result effective variables. Tsurumaru teaches if the amount is too low, heat aging resistance properties cannot be obtained and therefore the attenuation would be high and if too low, the mechanical and electrical properties would be poor and therefore associated with compression power and tensile strength. Absent unexpected results, it would have been obvious to one of ordinary skill in the art at the time the invention was made to optimize the amount of zinc oxide since it has been held that where general conditions of a claim are disclosed in the prior art, discovering the optimum or workable ranges involves only routine skill in the art. In re Aller, 220 F.2d 454, 105 USPQ 233 (CCPA 1955).
Regarding claims 1 and 3-10 and the claimed compression specific power P, haze attenuation rate, attenuation rate of heat shielding, and attenuation rate of a transverse tensile strength, although the prior art does not disclose these feature, the claimed properties are deemed to be inherent to the structure in the prior art since the prior art reference teaches an invention with a substantially similar structure and chemical composition as the claimed invention. Jones teaches a flash spun nonwoven comprising polyethylene and having low reduced degradation due to UV and weather. Tsurumaru establishes zinc oxide aid with heat aging. Products of identical structure and composition cannot have mutually exclusive properties. The burden is on the Applicants to prove otherwise.
Examiner would also like to note that the limitation “flash evaporation” is interpreted as a product-by-process limitation. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985).
Regarding claims 11-13, the limitations “wherein a spinning raw material includes polyethylene and a porous carbon material loaded with zinc oxide, and a spinning solvent includes a surfactant and a solvent” (claim 11), “wherein a mass fraction of the porous carbon material loaded with zinc oxide in the spinning raw material is 3%-6%; and the surfactant in the spinning solvent is 500 ppm-2000 ppm” (claim 12), and “wherein the porous carbon material loaded with zinc oxide is prepared by the following steps: (1) preparation of a solution of silica nanoparticles surface-coated with polyvinyl alcohol: (2) preparation of a zinc-containing porous carbon precursor dispersion: further adding the solution of silica nanoparticles surface-coated with polyvinyl alcohol prepared in step (1) to a zinc nitrate aqueous solution to continue a first-order reaction, thus making zinc and polyvinyl alcohol perform a chelation reaction and being loaded on the surface of the silica nanoparticles, then using an alkali to slowly adjust a pH value of a mixed solution to 11-12, and continuing a second-order reaction under alkali conditions to obtain the zinc- containing porous carbon precursor dispersion; (3) preparation of the porous carbon material loaded with zinc oxide: finally, separating the zinc-containing porous carbon precursor dispersion in step (2) by centrifugation, and taking a sediment from a lower layer to obtain a zinc-containing porous carbon precursor; performing aerobic calcination on the zinc-containing porous carbon precursor in the lower layer aerobically at 180°C-200°C for 15-30 minutes, and then rapidly heating up to 440°C-450°C within 1-5 minutes, performing anaerobic calcination for 45-60 minutes, and obtaining the porous carbon material loaded with zinc oxide after natural cooling” interpreted as a product-by-process limitations. Absent a showing to the contrary, it is Examiner's position that the article of the applied prior art is identical to or only slightly different than the claimed article. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Thorpe, 227 USPQ 964, 966 (Fed. Cir. 1985). The limitation only discusses a spinning raw material and provides no additional details, including how the flash evaporation material is formed. There are no limitations or process steps that described or limit the finally formed, claimed product, including whether the porous carbon material loaded with zinc oxide and the surfactant are even present in the finally formed product. The process as claimed encompasses the porous carbon material loaded with zinc oxide and the surfactant being removed as part of the processing. If still present, the amount within the formed product is not defined as the polyethylene is not specified merely the content in the spinning raw material, which could contain solvents driven off, i.e. evaporated, as part of processing. The burden has been shifted to Applicant to show unobvious difference between the claimed product and the prior art product. In re Marosi, 218 USPQ 289 (Fed. Cir. 1983). The applied prior art either anticipated or strongly suggested the claimed subject matter. It is noted that if Applicant intends to rely on Examples in the specification or in a submitted declaration to show unobviousness, Applicant should clearly state how the Examples of the present invention are commensurate in scope with the claims and how the Comparative Examples are commensurate in scope with the applied prior art.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. RU 2080342 to Gordienko teaches polymeric products that are resistant to UV-radiation comprising polyethylene with inorganic zinc, including zinc oxide that are high stable in the course of UV radiation. US Pub. No. 2019/0134965 to Waldie teaches a polyethylene film having improved UV resistance and teaches the use of zinc oxide and calcium carbonate as acid neutralizers. “The effect of cationic, anionic and nonionic surfactants on morphology and antibacterial properties of zinc oxide” to Bazari teaches the zinc oxide is known for its excellent chemical and thermal stability, excellent antibacterial effect, and UV light adsorbent properties and teaches that the use of polyvinylpyrrolidone is a known surfactant used in conjunction with zinc oxide formation.
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/JENNIFER A GILLETT/Examiner, Art Unit 1789
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